Moana v Police - [2022] NZHC 1392

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-485-18

[2022] NZHC 1392

BETWEEN
ANTHONY HURUMANU MOANA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 June 2022

Counsel:

E J M Smith for Appellant

R G Buckman for Respondent

Judgment:

14 June 2022

JUDGMENT OF SIMON FRANCE J

[1] Mr Moana appeals the refusal of the District Court to discharge him without conviction on a charge of domestic assault. If unsuccessful in that, a sentence of nine months’ supervision is challenged as being excessive and unnecessary. Separately, the imposition of a protection order in favour of Mr Moana’s victim is also appealed.1

Facts

[2] The defendant and the victim, who both have intellectual disabilities, had both been drinking. A disagreement occurred. Mr Moana struck the victim several times in the face, causing her to fall against a doorframe, and then onto a mattress. The victim suffered black eyes, swelling to her cheeks, and bruising in her face.

1 New Zealand Police v Moana [2021] NZDC 5990.

MOANA v NEW ZEALAND POLICE [2022] NZHC 1392 [14 June 2022]

Application for a discharge

[3] The District Court assessed the offending as medium to high level gravity because it was serious inter-partner instrumental violence.2 This assessment was based on a summary of facts prepared for a sentencing indication. It was modified in an agreed summary for sentencing. The Judge did not alter his assessment notwithstanding the modified facts (referring again, it seems, to the old summary) or the existence of enhanced rehabilitation endeavours. The consequences of conviction were assessed as vague and not out of all proportion to the gravity of the offending.

[4] On appeal it is submitted that correctly assessed, the offending would be assessed of low gravity. The Crown concedes an assessment lower than that of the District Court is available, but submits low is not.

[5] The approach to a discharge application is well known and need not be set out in detail.3 The first step is to identify the gravity of the offending. This entails consideration of all relevant sentencing factors relating both to the offending and the offender. Next, the consequences both direct and indirect are to be identified. Third, an evaluation of whether those consequences would be out of all proportion to the gravity of the offence is required. If there is such a lack of proportionality, the Court may grant a discharge without conviction but has a discretion not to do so in the particular case. On appeal the matter proceeds by way of rehearing. Here the judgment under appeal appears to have regard to an incorrect summary, and has not engaged in a detailed assessment of gravity. These matters support a fresh assessment.

(a) Gravity of the offending

[6] I consider the assault to be a moderately serious example of its type. No weapons were used and it was of a short duration. However, there were punches thrown at the head, injuries caused and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moana v Police

Details

AGLC: Moana v Police [2022] NZHC 1392
Case: [2022] NZHC 1392
Decision Date: 14 June 2022

CaseChat Overview and Summary

The appeal in Moana v Police concerned the refusal of the District Court to discharge Anthony Hurumanu Moana, the appellant, without conviction on a charge of domestic assault. Moana challenged the nine-month supervision sentence as excessive and unnecessary. The victim’s appeal against the imposition of a protection order in her favour was also considered. The case was heard by Simon France J in the High Court of New Zealand, Wellington Registry.

The court was required to determine the appropriate gravity assessment for the offending, whether a discharge without conviction was warranted, and whether the imposition of a protection order was justified. Moana argued that the offending should be assessed as low gravity, rather than medium to high gravity as determined by the District Court. The Crown conceded that a lower assessment was possible but argued that low gravity was not appropriate. The court was also required to consider the consequences of a conviction for Moana and whether they were disproportionate to the gravity of the offence. Furthermore, the court had to evaluate whether the protection order was necessary for the protection of the victim.

Simon France J determined that the assault, while moderately serious, should be assessed as low gravity given Moana’s intellectual disability, lack of prior convictions, genuine remorse, and efforts to avoid a repetition of the offence. The court concluded that the consequences of a conviction would be disproportionate to the gravity of the offence. Moana’s prospects of obtaining work would likely be made insurmountable by a conviction for assault. The court quashed the conviction and the nine-month supervision sentence, discharging Moana without conviction. However, the appeal against the making of the protection order was dismissed. The court found that the order was necessary for the protection of the victim, providing an extra layer of protection which aids recovery and reinforces the need for Moana to move on.

In conclusion, the appeal against conviction and sentence was allowed, and both were quashed. Moana was discharged without conviction. The appeal against the making of a protection order was dismissed.

Orders